Associated Offences 006 - updated July 2017

Question 1

How is conspiracy defined in Mulcahy v R?

Answer 1

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.

Question 2

What was found in R v Sanders regarding when a conspiracy ends?

Answer 2

A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged.

Question 3

What does s67 say about who can commit a conspiracy?

Answer 3

s67, CA 61

A husband and wife or civil union partners can commit conspiracy.

Question 4

What was found in R v White regarding the people involved in a conspiracy?

Answer 4

The conspiracy may be by a person who could not commit the crime and where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established and remains unknown.

Question 5

Churchill v Walton

Answer 5

The conspirators need not know it is an offence but must know the act is unlawful.

Question 6

How is knowledge defined in Simester and Brookbanks?

Answer 6

Knowing means ‘knowing’ or ‘correctly believing’. The defendant may believe something wrongly, but cannot ‘know’ something that is false.

Question 7

How is knowledge defined in R v Crooks?

Answer 7

Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was a party to the relevant offence. Mere suspicion of their involvement in the offence is insufficient.

Question 8

What was held in R v Briggs in regard to knowledge?

Answer 8

Knowledge may also be inferred from wilful blindness or a deliberate abstention from making inquiries that would confirm the suspected truth.

Question 9

For the purposes of the liability for Accessory After the Fact, how is Party defined in the Crimes Act? What are the elements?

Answer 9

Party - s661(1), CA 61
Defined as being anyone who
a) Actually commits the offence
b) Does or omits an act for the purpose of aiding any person to commit the offence
c) Abets any person in the commission of the offence
d) Incites, counsels, or procures any person to commit the offence

Question 10

R v Mane

Answer 10

To be considered an accessory the acts done by the person must be after the completion of the offence.

Question 11

For the purposes of the liability for Receiving when is receiving complete according to the Crimes Act?

Answer 11

Receiving
Receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property,
s246(3), CA 61

Question 12

R v Donnelly as it appears in the element of ‘Receives’ in the liability for Receiving.

Answer 12

R v Donnelly
Where stolen property has been physically recovered by the Police it is legally impossible to commit the crimes of receiving or attempted. It must be legally possible to receive the property.

Question 13

R v Lucinsky

Answer 13

The property received must be the property stolen or illegally obtained (or part thereof) and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.

Question 14

Discuss the element ‘Stolen’ in the liability for Receiving.

Answer 14

Stolen
s219(1), CA 61
Dishonestly and without claim of right, taking any property with intent to deprive any owner permanently of that property or of any interest in that property.

Question 15

How is obtains defined in the Crimes Act?

Answer 15

Obtains
s217, CA 61
Means obtain or retain for himself or herself of for any otherwise person.

Question 16

R v Kennedy as it appears in the liability for Receiving.

Answer 16

R v Kennedy

A guilty knowledge that the thing has been stolen or dishonestly obtained must exist at the time of receiving.

Question 17

When is a conspiracy complete?

Answer 17

The offence is complete on the agreement being made, accompanied by the required intent.

Question 18

List three types of circumstantial evidence from which intent may be inferred.

Answer 18

• offender’s actions and words before, during and after the event
• surrounding circumstances
• nature of the act itself

Question 19

How does the Oxford Dictionary define ‘Act’?

Answer 19

To take action or do something, to bring about a particular result.

Question 20

How does the Oxford Dictionary define ‘Omission’?

Answer 20

The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

Question 21

In what situation could someone conspiring outside of NZ be charged with conspiracy in NZ courts?

Answer 21

If they were later physically present in NZ and there act in continuance of the conspiracy.

Question 22

In what situation could someone conspiring to commit an offence overseas still be charged under the Crimes Act? What would be the defence?

Answer 22

If they conspire to commit anything, the doing or omitting of which would be an offence if done or omitted in NZ.

They have a defence if they can prove that the act is not an offence under the law of the place where it was to be committed.

Question 23

What is the exception to the hearsay rule in regards to the admissibility of evidence for a Conspiracy charge? What effect does this have on how people should be charged?

Answer 23

Anything a conspirator or party to a joint charge says or does to further the common purpose is admissible against the others involved. Therefore conspirators should be jointly charged.

Question 24

What five points should be covered when interviewing conspiracy suspects?

Answer 24

• the existence of an agreement to commit an offence OR the existence of an agreement to omit to do something that would amount to an offence
• the intent of those involved in the agreement
• the identity of all people concerned where possible
• whether anything was written, said or done to further the common purpose

Question 25

Explain the liability of a person who agrees to commit an offence with another person but then withdraws from the agreement before the completion of the intended offence.

Answer 25

A person withdrawing from the agreement is still guilty of conspiracy, as are those people who become party to the agreement after it has been made. However a person can effectively withdraw before the actual agreement is made.

Question 26

What are three groups of offences that do not allow for a prosecution in respect of an attempt?

Answer 26

Offences where:

• the criminality depends on recklessness or negligence, eg. manslaughter
• an attempt to commit an offence is included within the definition of that offence, eg. assault
• the offence is such that the act has to have been completed in order for the offence to exist at all. Eg. Demanding with menaces (it is the demand accompanied by menace that constitutes the offence)

Question 27

What three elements must apply for attempts?

Answer 27

• intent (mens rea) - to commit an offence
• act (actus reus) - that they did, or omitted to do, something to achieve that end
• proximity - that their act or omission was sufficiently close

Question 28

Quote the definition of attempts in the Crimes Act.

Answer 28

s72(1), CA 1961
Everyone who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

Question 29

Summarise the case law that is significant when considering the issue of inferring intent from an act.

Answer 29

R v Ring
In this case the offender’s intent was to steal property by putting his hands into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.

Question 30

Explain the rule used to decide whether a defendant’s actions are sufficiently proximate.

Answer 30

Effectively the defendant must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but” rule.

Question 31

What was held in R v Harpur in relation to Attempts?

Answer 31

The Court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops. The defendant’s conduct may be considered in its entirety. Considering how much remains to be done is always relevant, though not determinative.

Question 32

What are the two questions suggested by Simester and Brookbanks in relation to the proximity test?

Answer 32

• Has the offender done anything more than getting himself into a position from which he could embark on actual attempt?
  OR
• Has the offender actually commenced execution; that is to say has he taken a step in the actual offence itself?

Question 33

Briefly outline the three pieces of case law in relation to an act being physically or factually impossible.

Answer 33

R v Ring - put his hand in the pocket of a woman but there was nothing to be stolen
Higgins v Police - cultivated plants that weren’t cannabis so attempted to cultivate cannabis
Police v Jay - bought hedge clippings thinking they were cannabis

Question 34

Outline the role of judge and jury in regards to Attempts.

Answer 34

Judge must decide whether defendant has left preparation stage and was already trying to effect completion of the full offence. If Judge decides defendant’s actions were more than mere preparation the case goes to jury.

Jury decides whether facts presented by Crown have been proved beyond reasonable doubt then whether defendant’s actions are close enough to full offence. Jury must decide whether it’s beyond reasonable doubt that the defendant intended to commit full offence.

Question 35

Outline penalties for Attempts.

Answer 35

If max punishment is life = 10yrs

Everything else = half max punishment

Question 36

True or false? Where a person is charged with the full offence but are found guilty only of an attempt they may be convicted of the attempt.

Answer 36

True

Question 37

True or false? Where a person is charged with the attempt but the evidence establishes that they committed the full offence they can be convicted of the full offence.

Answer 37

False

Question 38

In each case of charging a person with being a party to an offence, what needs to be proved?

Answer 38

• Identity of the defendant
• An offence has been successfully committed
• The elements of the offence (s66(1)) have been satisfied

Question 39

When must participation have occurred for someone to be considered a party to an offence?

Answer 39

Before or during the commission of the offence and before the completion of the offence

Question 40

R v Pene

Answer 40

A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.

Question 41

There are two methods by which multiple offenders may be considered to be principals. What are those methods?

Answer 41

1. Each offender satisfies elements of the offence committed. They separately satisfy the necessary elements of the offence committed. No need to refer to s66(1).
2. Each offender separately satisfies part of the actus reus. Their actions must also be accompanied by the mens rea.

Question 42

Summarise R v Renata.

Answer 42

Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it.

R v Renata
The court held that where the principal offender cannot be identified it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1).

Question 43

Larkins v Police (not verbatim)

Answer 43

While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance.

Question 44

What are the two pieces of case law that relate to legal duty and special relationship?

Answer 44

Legal duty = Ashton v Police: a person teaching another person to drive is a secondary party with a legal duty owing to the general public.

Special relationship = R v Russell: A man has a special relationship with his wife and children and is morally bound to take active steps to save his children.

Question 45

Define ‘aid’ in the context of party to an offence.

Answer 45

To assist in the commission of the offence, either physically or by giving advice and information.

Question 46

Define ‘abet’ in the context of party to an offence.

Answer 46

To instigate or encourage; to urge another person to commit the offence.

Question 47

Define ‘incites’ in the context of party to an offence.

Answer 47

To rouse, stir up, stimulate, animate, urge or spur on a person to commit the offence.

Question 48

Define ‘counsel’ in the context of party to an offence.

Answer 48

To intentionally instigate the offence by advising a person on how best to commit an offence, or planning the commission of an offence for another person. May also mean urging someone to commit an offence (overlap with incitement).

Question 49

Define ‘procure’ in the context of party to an offence.

Answer 49

Setting out to see that something happens and taking the appropriate steps to ensure that it does.

Question 50

R v Betts and Ridley

Answer 50

An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.

Question 51

Section 66(2)

Answer 51

Where two or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

Question 52

True or false? An accomplice can be convicted of a lesser offence than the one that the principal offender is convicted of.

Answer 52

True (R v Hartley)

Question 53

Mere presence at the scene of an offence does not create liability on the part of the bystander. What are the two exceptions?

Answer 53

Special relationship and legal duty

Question 54

Outline the penalties for Accessory After the Fact.

Answer 54

If max penalty is life = max 7yrs
If max penalty is 10+yrs = max 5yrs
Everything else = max half the max punishment for that offence

Question 55

What needs to be proved for a charge of Accessory After the Fact?

Answer 55

• That the person who is received, comforted or assisted by the accessory is a party to an offence that has been committed.
• That, at the time of receiving, comforting or assisting that person, the accessory knows that person was a party to the offence.
• That the accessory received, comforted or assisted that person or tampered with or actively suppressed any evidence against that person.
• That at the time of receiving, comforting or assisting etc. the accessory’s purpose was to enable that person to escape after arrest or to avoid arrest or conviction.

Question 56

What are the specific statutory limitations imposed under s71(2)?

Answer 56

You can’t be charged with being an Accessory to your spouse, or your spouse and another party (if they’ve worked in concert). Applies to civil unions.

Doesn’t apply to de facto relationships.

Doesn’t apply where the person helps another party but does not assist the spouse/partner.

Question 57

For an Accessory, what knowledge must exist at the time assistance is given?

Answer 57

That

• an offence has been committed, and
• the person they are assisting was a party to that offence

Question 58

What are the five intentional acts from which an Accessory must do one?

Answer 58

• Receives
• Comforts
• Assists
• Tampers with evidence
• Actively suppresses evidence

Question 59

R v Gibbs

Answer 59

The act done by the accessory must have helped the other person in some way to avoid justice.

Question 60

True or false? It is possible to be convicted of attempting to be an accessory after the fact.

Answer 60

True (R v DH)

Question 61

What are the three possible intents of an Accessory?

Answer 61

To enable the offender to

• escape after arrest
• avoid arrest
• avoid conviction

Question 62

True or false? A person can be convicted as an Accessory After the Fact where the offender has been acquitted of the offence.

Answer 62

True

Question 63

Define receives in the context of Accessory After the Fact.

Answer 63

Receives: Refers to harbouring an offender or offering them shelter

Question 64

Define comforts

Answer 64

Comforts: Refers to providing shelter, accommodation, food, clothing or other supplies to an offender

Question 65

Give 5 examples of assisting in the context of Accessory After the Fact.

Answer 65

• providing transport
• acting as a lookout
• identifying purchaser for stolen property as a receiver
• deliberately providing authorities with false info as to offender’s whereabouts
• giving advice, info, material or services to offender

Question 66

Define tampers with

Answer 66

Tampers with: To alter the evidence against the offender

Question 67

Define actively suppresses

Answer 67

Actively suppresses: Encompasses acts of concealing or destroying evidence against offender

Question 68

What is the primary difference between a party to an offence and an accessory after the fact?

Answer 68

A party is involved in before or during commission of the offence; accessory is involved after the principal offence has been committed.

Question 69

Under what circumstances can you charge someone as being an accessory when they have received goods dishonestly obtained?

Answer 69

Where you can prove that the property was received with an intention to assist the offender evade justice.

Question 70

When is perjury complete?

Answer 70

At the time the false evidence is given accompanied by an intention to mislead the tribunal.

Question 71

What are the two main points to be covered when interviewing a suspect in respect of perjury?

Answer 71

• Whether the suspect knew their assertion was false AND

- Whether they intended to mislead the tribunal governing proceedings

Question 72

Outline the penalties for Receiving.

Answer 72

Value $1,000+ = max 7 yrs
$500-1,000 = max 1 yr
Less than $500 = max 3 mths

Question 73

What three elements need to be satisfied for the act of receiving?

Answer 73

• There must be property which has been stolen or has been obtained by an imprisonable offence
• The defendant must have received that property, which requires that the receiving must be from another (you cannot receive from yourself)
• The defendant must receive that property in the knowledge that it has been stolen or illegally obtained, or being reckless as to that possibility

Question 74

When is the act of receiving complete?

Answer 74

Once the defendant has

• either exclusively or jointly with the thief or any other person
• possession or control of the property OR
• has assisted in the concealment or disposition of the property
• if there is guilty knowledge at that point the offence is complete

Question 75

What was held in R v Kennedy in relation to establishing possession for Receiving?

Answer 75

The prosecution must prove an intent on the part of the receiver to possess the property.

Question 76

Explain how possession of property can be established in a charge of receiving.

Answer 76

By showing that the property is:

• in the immediate physical custody of the receiver OR
• at a location, over which the receiver has control (such as their place or business or private residence)

Question 77

Explain the doctrine of recent possession.

Answer 77

It is the presumption that, where the defendant acquired possession willingly, the proof of possession by the defendant of property recently stolen is, in the absence of a satisfactory explanation, evidence to justify a belief and finding that the possessor is either the thief or receiver or has committed some other offence associated with the theft of the property (eg. burglary, robbery).

Question 78

How can title be avoided?

Answer 78

• Communicating directly with the receiver
• Taking all reasonable and possible steps to bring it to the deceiver’s notice (eg. letter, email)
• Advising police of the circumstances of the deception

Question 79

Define the term money laundering.

Answer 79

The process of dealing with the proceeds of criminal activity in such a way as to make the proceeds appear to have been legitimately acquired.

Question 80

The elements of money laundering.

Answer 80

In respect of any property that is the proceeds of an offence
Engages in a money laundering transaction
Knowing or believing that all or part of the property is the proceeds of an offence
Or being reckless as to whether or not the property is the proceeds of an offence

Question 81

What is the purpose of the Criminal Proceeds (Recover) Act 2009?

Answer 81

…to establish a regime for the forfeiture of property

a) that has been derived directly or indirectly from significant criminal activity or
b) that represents the value of a person’s unlawfully derived income

Question 82

What is a qualifying instrument forfeiture offence?

Answer 82

a) Means an offence punishable by a maximum term of imprisonment of 5 years or more AND
b) Includes an attempt to commit, conspiring to commit, or being an accessory to an offence if the maximum term of imprisonment for that attempt, conspiracy or activity is 5 years or more.

Question 83

What is the definition of ‘significant criminal activity’ under s6, CP(R)A?

Answer 83

…significant criminal activity means an activity engaged in by a person that if proceeded against as a criminal offence would amount to offending

a) that consists of or includes one or more offences punishable by a maximum term of imprisonment of 5 years or more OR
b) from which property, proceeds or benefits of a value of $30,000 or more have, directly or indirectly, been acquired or derived.

Question 84

What is the definition of ‘tainted property’ in s5, CP(R)A?

Answer 84

a) means any property that has, wholly or in part, been
i) acquired as a result of significant criminal activity or
ii) directly or indirectly derived from significant criminal activity and
b) includes any property that has been acquired as a result of, or directly or indirectly derived from, more than one activity if at least one of those activities is a significant criminal activity.

Question 85

How long is a restraining order in relation to an Instrument of Crime valid?

Answer 85

One year from the date on which the order is made. Court may issue extension before expiry for another year.

Question 86

What points need to be considered when interviewing a suspect about money laundering?

Answer 86

• suspect’s legitimate income
• suspect’s illegitimate income
• expenditure
• assets
• liabilities
• acquisition of financial records, from banks, financing companies, loan sharks, family trust documents
• clarification of documentary evidence located, as per above

Question 87

List four points to cover when interviewing a witness for Conspiracy.

Answer 87

• The identity of the people present at the time of the agreement
• With whom the agreement was made
• What offence was planned
• Any acts carried out to further the common purpose

Question 88

Give five reasons why it is undesirable to lay both a substantive charge and a related conspiracy charge.

Answer 88

• The evidence admissible only on the conspiracy charge may have a prejudicial effect in relation to other charges
• The judge may disallow the evidence as it will be too prejudicial
• The addition of a conspiracy charge may unnecessarily complicate and prolong a trial
• Where the charge of conspiracy is not founded on evidence or is an abuse of process it may be quashed
• Severance may be ordered.

Question 89

List four elements that must be taken into consideration when determining proximity.

Answer 89

Fact
Degree
Common sense
Seriousness of offence

Question 90

Define innocent agent.

Answer 90

Someone who is unaware of the significance of their actions.

Question 91

List five examples of circumstances commonly relied on as evidence of guilty knowledge on the part of a receiver.

Answer 91

• possession of recently stolen property
• nature of the property
• purchase at gross undervalue
• secrecy in receiving property
• receipt of goods at unusual place
• receipt of goods at unusual time
• receipt of goods in unusual way
• concealment of property to avoid discovery
• removal of identifying marks/features
• steps taken to disguise property
• lack of original packaging
• type of person goods received from
• mode of payment
• absence of receipt where one would usually be issued
• false statements as to the source of the goods
• false statement as to date of acquisition
• nature of explanation given, eg, false/inconsistent
• false denial of knowledge/existence

Question 92

According to s7, Criminal Proceeds (Recovery) Act 2009, what is the meaning of unlawfully benefited from significant criminal activity?

Answer 92

knowingly, directly or indirectly, derived a benefit from significant criminal activity (whether or not that person undertook or was involved in the significant criminal activity).

Question 93

Under s55, Criminal Proceeds (Recovery) Act 2009, when must the High Court make a profit forfeiture order?

Answer 93

…if it is satisfied on the balance of probabilities that

a) the respondent has unlawfully benefited from significant criminal activity within the relevant period of criminal activity and
b) the respondent has interests in the property.

Question 94

Who may apply for restraining orders (apart from those relating to instruments of crime), assets forfeiture orders and profit orders?

Answer 94

Only members of the Asset Recovery Unit.

Question 95

How is property defined in the Crimes Act?

Answer 95

Property
s2, CA 61
Property includes real and personal property and any estate or interest in any real or personal property, money, electricity and any debt and any thing in action and any other right or interest.

Question 96

Cullen v R

Answer 96

There are four elements of possession for receiving:

(a) awareness that the item is where it is;
(b) awareness that the item has been stolen;
(c) actual or potential control of the item; and
(d) an intention to exercise that control over the item.

Question 97

Once the acts are sufficiently proximate, the defendant has no defence that they:

Answer 97

• were prevented by some outside agency from doing something that was necessary to complete the offence (eg. interruption by Police)
• failed to complete the full offence due to ineptitude, inefficiency or insufficient means (eg. insufficient explosive to blow apart a safe)
• were prevented from committing the offence because an intervening event made it physically impossible (eg removal of property before intended theft)

Question 98

R v Cox

Answer 98

Possession involves two elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Question 99

R v Harney

Answer 99

Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequences complained of could well happen, together with an intention to continue the course of conduct regardless of risk.

Question 100

Explain the three stages of the Money Laundering Cycle.

Answer 100

Placement: Cash enters the financial system
Layering: Money is involved in a number of transactions
Integration: Money is mixed with lawful funds or integrated back into the economy with the appearance of legitimacy